The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-10-28


a The construction given to the law in this
case was different from the construction given
20 il in large number of other cases in the
same State He then referred to the objections
made by the defense at the trial to the rulings
Of the court in the matter of challenges; to the
refusal of the court. a motion for a new trial.
20 hear evidence going to show that the oaliH
had said that 1.-THE men he had selected for the
panel would be certain to hang" and to various
sther rulings ard decisions of the trial court
which had the effect of denying to the prisoners
q fair trial by an impartial jury.
Turning then To another question raised by
the case. which. he said. was new one In this
court. he quoted the second clause of the four
.eenth amendment, to the effect that no State
shall make enforce any law which shall
abridce the privileges or immunities OF citizens
of the United States" Among the privileges
aud immunites" thus guaranteed by the four
teenth amendment, were, ne commended those
set forth in the first ten amendments to the fed
eral constitution, such as 1.-The right of citizens
TO be secure in their persons, houses, papers ana
effects against unreasonable searches aud seiz-
ures" fourth amendment). and the immunity
DESIGNATED in the clause of the fifth amendment
which provides that no person shall be compelled
in any criminal case TO be witness against him
self. ''Ir mas been maintained" he said, shat
these first ten amendments TO the Constitution
were limitations of federal power only. but IN
my opinion they had also the character OF q bill
of rights; they showed what some OF the rights
of citizens of the United States were, and those
rights. privileges and immunities were carried
forwsrd and confirmed by the fourteenth amend
ment" liz was his belief that unless the privl-
lagos and immunities set forth in the first ten
amendments specifically said in terms TO
be merely limitations of federal power, they
were privileges and immunites which came
within the purview of the fourteenth amend
ment, and were guaranteed by it.
MIR. Chief Justice Field-Then you would bring
all questions this court. l cannot conceive
of any question which cannot be brought here
IL the fourteenth amendment makes the 'privi-
leges and immunitiesD to which 1t refers include
all those of the first ten amendments.
Mr.. Tucker said he would admit that 1t was
new question, but that ne should like to argue
IL. In the only two cases in which this question
had been raised the context showed that the
purpose was to limit the federal power. Now.
I make the assertion said Mr.. Tucker, that
the right to be exempt from unreasonable
searches aud seizures. the right to freedom OF
speech. the right of the citizen against self accu
sation, and the right OF the citizen not to be
twice tried by jury, are secured to him by
virtue of the Constitution of the United States.
Being so, the fourteenth amendment comes in
and says that no State shall make or enforce
any law which abridges the rights or privileges
of citizens" Turning to the action and rulings
of the trial court. Mr.. Tucker said that the de-
Tense driven TO peremptory challenges in
order to exclude jurors who should have been
rejected for cause, and that thereby there was
limitation OF the right of peremptory challenge
which tnis court has held to be one of the high
est privileges of a prisoner ..Tns last four
jurors" said Mr.. Tucker, "wer0 put upon US
after our peremptory challenges had been ex-
hausted. In one case we objected distinctly.
npon the ground that the ruling of tho court
was in violation of the Constitution"
The Chief-justice inquired In what part OF the
.ecord this appeared.
blr. Tucker said that it was in the case OF the
iuror Denker, referred to on page IL of the pc
sitiopers brief. Mr.. Tucker then referred to
the seizure of the letters. private papers, etc.
of one of the prisoners and their use against
him as evidence and as a basis for cross-exam-
nation, and said that this was in violation of
the fourth amendment. How far, Mr.. Tucker
asked, would not this court go in sustaining the
rights CT the citizen if this had occurred with
the recently -enfranchised slaves of the South2
Justice Miller understand you to express
she opinion that the first ten a-<ldmsnts were
all limitations of the power of N federal gov
ernmentl
they are declaration of rights; the second is
that they are declaration of rights which are
beyond the reach of the federal power.
In conclusion Mr.. Tucker said: I'VE have a
right in my Judgment, the writ to be heard
on the question whether the Constitution has
been violated in order to compass the conviction
Anarchists 1.-THE court asks me whether l
have any sympathy with them, ] have
only to say that the court knows
have S s s0S sympathy with u'p snes. unhappy
and misguided men. But they are men. aud
they are entltled to the same protection that
am The same Constitution is all /
ask the court TO nterpose Its shield and protect
these mon, because / may need II myself. L
know no anarchy abroad in this land which the
American people need fear except anarchy In
the administration of justice. fear that when
anarchy dons the ermlne OF justice and admins
ters lynch law, in violation of the supreme law
of the land, whether the prisoners point can be
sustained is a question you can only decide after
an examination of the record and hearing.
Strike after YOU hear, but don't strike before
you hear. pray that the court will. therefore,
award this writ, for, If l do not mistake there
are evidences in this whole record which will de-
mand the reversal of the Judgment"
Mr.. Attorney General Hunt then addressed
the court in behalf of the State and oppo-
stion to the motion for a writ OF error. To
warrant the issuance of the writ it must appear,
he said, from the record, first, that there is
federal question involved, and second. that such
question was raised and decided in the State
court He was not as well informed as he would
like to be with regard to the exact points upon
which counsel for the petitioners relied. In the
first part Of his argument. Mr.. Tucker planted
himself sguarely upon the rights wi ich belonged
to his clients under the fourteenth mendment,
but in the latter part hechanesd ground slightly
and insisted that the first ten amendments were
declarations of individual rights. and then that
they were all comprised in the provisions
of the fourteenth amendment. The Attorney
general opposed this view. and insisted that the
prohibitions contained In the first ten amend
ments to the Constitution are limitations on the
powers of the federal government, and not upon
the States. So far as petitioners rely upon any
thing contained in those amendments they
have no standing in this court The fourteenth
amendment is equally foreign to any right,
privilege or immunity mere claimed Dy the pc
titioners. The fourteenth amendments declares:
''No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens OF the United States. nor shall. any
State deprive any person of life, liberty.
property without due process of law. nor deny
to any person within its Jurisdiction
the equal protection of the laws" The record
will show that the complaint is not that the
State has made or is enforcing a law which de-
prves the petitioners of any of the privileges or
immunities guaranteed by that section. out they
are deprived of rights by erroneous construc-
ton of the law. placed upon it by tho trial court
OF the State. Petitioners did not claim, in the
Supreme Court of the State, that the Illinois
act of 1874 was repugnant to the Constitution,
treaties. or laws of the United States, nor that
the authority of the court was exercised under
u, but that the act was constitutional and valid,
and that the exercised its power in viola
lion of that law. The petitioners were tried in
he courts of the State, under the laws of the
State. and that constitutes due process OF law.
Il is not material that this another cour:
might have ruled differently under the law.
Due process of law means law of the land In